June 21, 2013

Eugene Volokh frames the question of what was at issue in the Supreme Court's opinion in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. and quotes his own brief which was — I would say; he doesn't assert so — influential:

This case is about far more than prostitution and HIV/AIDS. The expansion of the modern regulatory state has increasingly led to financial involvement of the government with private organizations — including churches, religious universities, and religious charities — in ways that potentially give the government power over those organizations. Tax exemptions, which have been treated by this Court as tantamount to the provision of funds, are a prominent example. Student loans and grants, which are likewise treated as equivalent to direct payments to the university, are another. Numerous other examples exist, including the direct grants at issue here.

Under the government’s theory in this case, federal, state, and local governments may use these kinds of government funding programs as leverage to pressure organizations into affirmatively expressing particular government-prescribed views as the organizations’ own. For instance, if a government wants to pressure such groups to avow that they support or oppose contraception, pacifism, abortion, the death penalty, assisted suicide, or whatever other policy those then in control of the government choose, then that government would be free to do so.

For the reasons discussed below, that cannot be right. Such a “get with the program” power would let the government badly distort the marketplace of ideas by strengthening groups that toe the government line and financially crippling groups that refuse to say what the government demands. And such a power to coerce ideological conformity would unacceptably burden religious groups’ rights to speak or not speak in accordance with the truth as they see it. “[N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). Likewise, no official should be permitted to acquire such a power by using the government’s vast resources as a tool for control of groups that participate in government programs.

Contrary to the government’s view, a government’s recognized power to limit speech within the programs that it funds cannot justify a power to compel speech as a condition of government funding. Government programs that limit what can be said within the programs typically leave participants ample alternative means of exercising their rights to speak as they see fit. The participants just have to engage in their preferred speech outside those programs.

But when the government compels an organization to say things — even if only through an affiliate — as a condition of participating in a program, then the organization cannot avoid saying those things. It thus has no alternative means of exercising its Free Speech Clause right not to speak while still participating in the program.

Moreover, once an organization is pressured to state a policy with which it does not agree, even through an affiliate, its ability to express contrary views outside the program will be undermined. Saying one thing in the program and the opposite outside will make the organization appear at best equivocal and at worst hypocritical. Thus, by compelling the endorsement of a government policy as a condition of accessing government-controlled funds, the government will have the power to effectively restrict the program participant’s speech even outside the government program — a power this Court’s cases have rightly rejected.

I presume Garage refers to the Regent Appointee (the student one, I think) who was appointed by Walker, and then de-appointed when it was revealed (not sure by whom) that Appointee had signed the recall petition? Given money to some anti-Walker group? (I'm not sure).

If Walker wants complete loyalty, why doesn't he exercise due-er diligence when making an appointment? Ideally, the due-est of diligence.

You favor politicians making political appointments to people who are actively seeking to oust them from office?

I favor a hiring system that doesn't discriminate against people who exercised their constitutional rights to sign a recall petition. So yes.

It actually works both ways. In the future conservatives could be discriminated against as well for signing a recall petition against a Democrat. Or even not signing a recall petition could potentially be held against a person.

I'd agree with you if Walker is going through and blocking hiring for road crews or teachers. If he's refusing to hire on petition signers to his own staff or political appointments then... wow... cry me a freaking river.

Wouldn't, by this logic, the government be compelled to fund schools that, in addition to a regular curriculum, also teach religion or other objectionable matters? At least, if the government is to fund schools at all.

When you have to take to the Internet to equate a temporary appointment to a quasi-governmental body as some sort of "job" to take pot shots at your state's Governor, you're either silly, dishonest, or mock-worthy stupid.

Seeing Red said...The power to tax is the power to destroy================Move to tax-free Somalia or Afghanistan, where your nursery school level slogan plays out in real life in it's absence.

Oh, wait...the power to then form armed groups of Freedom Lovers! is also the power to destroy and extort money and behaviors from those the Freedom Lovers subjugate! Be they Talibani or young black thugs roaming neighborhoods in machine gun mounted pickup trucks. My word! Another slippery slope!

When you have to take to the Internet to equate a temporary appointment to a quasi-governmental body as some sort of "job" to take pot shots at your state's Governor, you're either silly, dishonest, or mock-worthy stupid.

It was such a nothing burger appointment that Walker couldn't even pull that off. Vetted for 4 months, told the kid he had the appointment, announced publicly his choice of the appointment, then withdrew it a few days later after it was found he signed a recall.

This is why people like you are so paranoid that Democrats are out to get them, because that's how you operate. It's in your DNA.

If Walker wants complete loyalty, why doesn't he exercise due-er diligence when making an appointment?

Maybe because the Democrats managed to so screw up the State of Wisonsin that he has dozens of things to worry about every day that are more important than the student appointee to the Board of Regents?

I presume Garage refers to the Regent Appointee (the student one, I think) who was appointed by Walker

He was NOT appointed, he was a political nominee who then had his nomination revoked. 230 years into politicians appointing politically like-minded people to political posts in this country, and only now does garage think it's a problem. Wonder why that is?

I favor a hiring system that doesn't discriminate against people who exercised their constitutional rights to sign a recall petition. So yes.

Your past support of public union employees casts anything you say in favor of a given hiring system (which, by definition must also include a firing system) in a humorous, if not outright ironic, light.

Maybe because the Democrats managed to so screw up the State of Wisonsin that he has dozens of things to worry about every day that are more important than the student appointee to the Board of Regents?

Garage, you're in high indignation mode because a governor didn't appoint one of his political opponents to a politically appointed office.

And yet you poo-poo the fact that the IRS, OSHA, and EPA went after ordinary citizens, small business people, and damned-near ruined lives, because those people had the gall to support a political movement opposed by the acronyms' superiors and union (which contributes almost solely to the party of their superiors).

Cedarford said...Seeing Red said...The power to tax is the power to destroy================Move to tax-free Somalia or Afghanistan, where your nursery school level slogan plays out in real life in it's absence.

Oh, wait...the power to then form armed groups of Freedom Lovers! is also the power to destroy and extort money and behaviors from those the Freedom Lovers subjugate! Be they Talibani or young black thugs roaming neighborhoods in machine gun mounted pickup trucks. My word! Another slippery slope!

I'm going to apply for a position with the Obama Administration -- and if I don't get it merely because I've referred to Obama as "President Poopdick" on numerous occasions, I'll scream "discrimination".

Garage, I know you never discriminate. Particularly between a valid argument and a steaming pile of shit.

It actually works both ways. In the future conservatives could be discriminated against as well for signing a recall petition against a Democrat. Or even not signing a recall petition could potentially be held against a person.

Or, the IRS might actually discriminate against conservative groups for petitioning against the Obama administration.

Oh, wait. You said the other day that this isn't happening. Never mind...

Move to tax-free Somalia or Afghanistan, where your nursery school level slogan plays out in real life in it's absence.

Right, because those are such libertarian paradises...

Oh, wait...the power to then form armed groups of Freedom Lovers! is also the power to destroy and extort money and behaviors from those the Freedom Lovers subjugate! Be they Talibani or young black thugs roaming neighborhoods in machine gun mounted pickup trucks. My word! Another slippery slope!

Just how does the above gibberish discount that the power to tax is the power to destroy? Are you making some other kind of point here?

Just one libertarian assholes neglect to mention.

Look, C4, if you want to bend over and take it with no aid of Vaseline, go right ahead. A lot of us are sick of people like you who excuse this administration's incursions into our lives as a whole. Just explain where it ends with non-libertarian assholes, and at least we can have a discussion about it.

Or, the IRS might actually discriminate against conservative groups for petitioning against the Obama administration.

"John Shafer, who described himself as "a conservative Republican," told congressional investigators he flagged the first application for tax-exempt status from a Tea Party-aligned group that he and a lower-level agent came across in February 2010 because it was a new, high-profile issue.

Asked if the lower-level agent sought to elevate the case to Washington because he disagreed with Tea Party politics, Shafer said that was not the case.

"We never, never discussed any political, personal aspirations whatsoever," he said, according to a transcript of his testimony reviewed by Reuters on Tuesday."

Shafer’s testimony makes clear that the criteria seemed to be set in Washington. Cummings claimed the transcript shows there was no concerted White House involvement in the targeting of political opponents, while Issa maintains there is still insufficient detail to make that assertion.

It's those damned conservative Republicans, going after Tea Party groups. I mean, you've got proof right there: That guy is clearly a conservative Republican. He says so, after all.

And clearly he would have no reason to lie. And obviously he's the only guy involved, and the whole mess begins and ends with him. All of those other IRS employees who said they didn't have the authority to initiate this locally and it had to come from DC -- they were suffering from a mass delusion.

Or, the IRS might actually discriminate against conservative groups for petitioning against the Obama administration.

Here's the opposite take from a recent Stockholm U / Harvard paper, gm:

"President Obama's margin of victory in some of the key swing states was fairly small: a mere 75,000 votes separated the two contenders in Florida, for example. That is less than 25% of our estimate of what the Tea Party's impact in Florida was in 2010. Looking forward to 2012 in 2010 undermining the Tea Party's efforts there must have seemed quite appealing indeed. . . .It might be purely accidental that the government targeted precisely this biggest threat to the president. It may just be that a bureaucracy dominated by liberals picked up on not-so-subtle dog whistles from its political leadership. Or, it might be that direct orders were given." h/t Taranto

Shafer said he was in charge of the tax agency's first look at all tax-exemption applications sent to Cincinnati. Forms that needed a closer look were sent to another unit, he said.

"On an annual basis there would be upwards to 70,000 applications" submitted to the Cincinnati office, he said. "On a monthly basis there would be 4,000 to 5,000 applications that would go through my group."

Mainly because it can't be credibly argued that Shafer represents the entirety of the Cincinnati.

Obama forced political appointee Van Jones to resign, simply because Jones' truth was that the hijacked airliners and the subsequent destruction of the WTC were acts committed by agents of the US government, rather than Osama bin Laden's al Qaida terrorist group.Fish rot from the head, my friends.From the head.

I don't think there was any necessity for "orders" to come down from Washington; they all belong to the same party - or Party - and understand each other perfectly without any need for "orders." It is just a two-way street.

Signing a recall petition can disqualify you from working in Wisconsin.

Regardless of the specifics of the case you're talking about (where I have to say that I think you have the worse of the argument), you've managed to derail the thread from its intended topic almost immediately. Said topic being Eugene Volokh's distinction between speech forbidden to entities receiving government grants, and speech compelled of entities seeking them.

Does that distinction matter? I think it does. It has absolutely zilch to do with the student regent appointment, because there was no compelled speech at issue there.

Because slowrolling (up to 3 years!) reviews is not "denying"? Or having dozens of applicants withdraw when harassing information was requested against standing policy?

So I guess if Walker had just told Joshua Inglett he had to submit (and re-submit, and re-submit) all his personal info, contact lists, etc., and wait for 3 years to be notified if was to be appointed or not (and in the meantime someone else would do the job), that would've been cool?

I'm always amazed with a clear prompt from Ann to talk about the power of a "tax" that her followers have no clue and immediately digress into non-related local issues.

Supreme Court Justice ROberts clearly called Obamacare a "tax" and not a "fine".

The issue here is that if Amish and Mennonites and maybe Muslims or whoever are exempted from Obamacare regs because of religion......

where else in our US Tax code are "religions" given exemption from taxation of a mandate to buy a product.

The Obamacare thing is a lot like Gay Marriage....we can't know the consequences of the bill until it's enacted and in motion to see the parties lines up to challenge it.

Me - if SCOTUS allows gay marriage, there will be a huge influx of lawsuits from gay people (all orchestrated and ready to spring into action) who will sue Christian bakeries for not baking them wedding cakes.....or evangilist florists or wedding planners who will refuse to support gay marriage clients.....we have lots out there now to prove these spring lawsuits are waiting to "unspring"....

and as for Ocare - if the Amish are exempt from this tax based on religion, why not me and my religion.

BTW - Ocare was designed to fail - written by Big Pharm and unions (with Obama being very disinterested as his only goal is to create chaos in USA in order to get us to universal healthcare)...

P.Lessons wrote: if SCOTUS allows gay marriage, there will be a huge influx of lawsuits from gay people (all orchestrated and ready to spring into action) who will sue Christian bakeries for not baking them wedding cakes.....or evangilist florists or wedding planners who will refuse to support gay marriage clients.....we have lots out there now to prove these spring lawsuits are waiting to "unspring"....

That cannot be. It sounds like bullying, and we all know that gay people are only ever victims of bullying, never bullies themselves.

Here's the "bumper sticker" version of the ciral Gay Neeson speech on You Tube and European websites (like I said, USA gay activists have been successful in scrubbing out this story)"

Gay Neeson's essential hypothesis:

“Gay marriage is a lie. Fighting for gay marriage generally involves lying about what we’re going to do with marriage when we get there. It’s a no-brainer that the institution of marriage should not exist. … ‘Marriage equality’ becomes ‘marriageelasticity,’ with the ultimate goal of ‘marriage extinction.’ ”

Read more at http://www.inquisitr.com/641413/gay-marriage-is-a-lie-lesbian-masha-gessen-and-glenn-beck-agree/#mSJ3kmt2Bp3wgrcf.99

I Callahan - above gibberish discount that the power to tax is the power to destroy?

It is a stupid slogan - as in any organized human society outside the fantasy libertarians have of the Lone Hero that needs nuthin' from others and asks nuthin be taken - the allocation of resources for compensation for specialization of labor and tasks requires some rules based redistribution based on reward and punishment. Call it taxes.Or call it demand that cave dwellers that got the berries and meat give some to aged members that reared those back when they were too young to hunt or dig up roots. All call it how things are redistributed in a commune.

Simple human progress.

And the stupid slogan can be applied to other matters quite easily and spouted as something "profound".

* The power to harnass fire is the power to destroy!*Taming horses also means man has a better power to destroy*Making steel means the power to destroy*Any country with a military is in danger of being destroyed by the same Army once the slippery slope is underway*The right to keep and bear firearms is also the power to destroy others.

Or call it demand that cave dwellers that got the berries and meat give some to aged members that reared those back when they were too young to hunt or dig up roots.

Except cave dwellers didn't do that. Really, Cedarford, you should write something, read it, ask yourself 'does this make me look like an idiot?' and only if it does not, hit the 'publish your comment' button.

Signing a recall petition can disqualify you from working in Wisconsin

Really? I want you to post that law, citation, or regulation on here or further disgrace yourself as the abhorrent liar you are. Why Althouse tolerates you is a mystery. Maybe it's because you live in the same state or city. I don't know, but your lies cannot go unpunished any longer, you disgusting mongoloid of the left.

I presume Garage refers to the Regent Appointee (the student one, I think) who was appointed by Walker, and then de-appointed when it was revealed (not sure by whom) that Appointee had signed the recall petition? Given money to some anti-Walker group? (I'm not sure).

If Walker wants complete loyalty, why doesn't he exercise due-er diligence when making an appointment? Ideally, the due-est of diligence.

Signing a recall petition can disqualify you from working in Wisconsin

Really? I want you to post that law, citation, or regulation on here or further disgrace yourself as the abhorrent liar you are. Why Althouse tolerates you is a mystery. Maybe it's because you live in the same state or city. I don't know, but your lies cannot go unpunished any longer, you disgusting mongoloid of the left.

Once you realize he is a committed true believer and he will gleefully lie in service of his beliefs, you can pretty much dismiss anything he says unless its about fishing or dogs, and the fishing is kind of iffy.Just ignore him.